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You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> RMcGinty v. Her Majesty's Advocate [2006] ScotHC HCJAC_8 (18 January 2006) URL: https://www.bailii.org/scot/cases/ScotHC/2006/HCJAC_8.html Cite as: [2006] ScotHC HCJAC_8, [2006] HCJAC 8 |
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Lord Justice Clerk
Lord Osborne Lord MacLean
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[2006] HCJAC 8
XC287/03
OPINION OF THE COURT delivered by THE LORD JUSTICE CLERK in APPEAL AGAINST CONVICTION in REFERRAL BY THE SCOTTISH
CRIMINAL CASES REVIEW COMMISSION in the case of JOHN ![]() Appellant against HER MAJESTY'S ![]() Respondent _____________ |
For the appellant: Scott QC; Balfour and Manson
For the Crown: Mackay, AD; Crown Agent
[1] On
12 June 1997 the appellant was convicted at
[2] On
various
quantities of bank notes in bundles in plastic shopping bags and in a
shoe box. The total sum recovered was
£75,245.05. Nearly all of the notes were
in denominations of £10 and £20. The
appellant was unemployed at the time. The
police also recovered three pieces of paper containing names and figures and an
electronic note counter.
[4] DC Ian
Bell of the Drug Squad said that the three pieces of paper were tick lists and
that they recorded the supply between 15 and various
dates up to the date of the search. He suggested that the list recorded the
receipt of substantial sums during that period.
The notations on these lists included the word "bar," which in his
experience referred to cannabis resin.
[5] The
appellant gave evidence to the effect that the money had been given to him by
his brother Joseph in the days immediately before the search, principally for
the purpose of checking. The money came
from an illegal operation conducted by his brother and others involving the
sale of "outers," that is to say parcels of cigarettes, spirits, denims and
fake designer products that were smuggled into the McGinty,
supported this account.
[6] In
a report dated various
drugs could be found
on banknotes, the mere identification of a particular compound was unlikely to justify
the conclusion that a particular quantity of money was linked with drugs. Dr Sleeman also concluded that there had been
other deficiencies in the Crown evidence arising from the methodology that had
been used.
[7] An
appeal in this case was refused in 1999 (McGinty
v
HMA,
2000 SCCR 293). We need not go into the reasons. It is sufficient to say that the question of
Dr Sleeman's report was raised by the appellant at that stage.
[8] The
Scottish Criminal Cases Review Commission has referred the case to us on the
view
that there may have been a miscarriage of justice. They have drawn to our attention three
significant matters. The first is
Dr Sleeman's report. The second is a
memorandum, signed by the Head of Chemistry and by the Principal Scientist of
Strathclyde Police Forensic Laboratory, entitled "Examination of Money for
Drugs." It is dated
[9] The
appellant has tabled a ground of appeal based on fresh evidence. Approaching this as a fresh evidence appeal,
we are satisfied (a) that the three matters to which we have referred
constitute fresh evidence; (b) that there is a reasonable explanation why it
was not tendered at the trial, and (c) that there is independent support for
the reason why Miss Cochrane and Mr Stewart did not express their present
opinion at the trial. In our opinion, a
verdict
returned in ignorance of this evidence must be regarded as a
miscarriage of justice (cf Cameron
v
HM
Adv, 1987 SCCR 608; Kidd
v
HM
Adv,
2000 SCCR 513).
[10] It may however be unnecessary for us to treat this case as a
fresh evidence appeal. It may be
sufficient for us to say that the evidence of the forensic scientists was
significant evidence in the trial. The
trial judge expresses that view
in his Report.
The
advocate
depute relied strongly upon it in his speech to the
jury. The trial judge directed the jury
carefully as to its relevance to the other evidence in the case. It is now obvious that that evidence ought
not to have been given, and that it would not have been given if the Crown
experts had been fully abreast of contemporary research studies on the
subject. Since that evidence was given,
we conclude that the appellant did not have a fair trial. On that
view too there was a miscarriage of
justice.
[11] We shall quash the conviction on charge 1.